Barlow v Trinity Mining Services and Supplies Pty Ltd (in Administration) - [2025] WASC 186

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BARLOW -v- TRINITY MINING SERVICES AND SUPPLIES PTY LTD (IN ADMINISTRATION) [2025] WASC 186
CORAM:   HILL J
HEARD:   1 MAY 2025
DELIVERED          :   1 MAY 2025
PUBLISHED           :   20 MAY 2025
FILE NO/S:   COR 64 of 2025
BETWEEN:   BEVIN GARTH MARK BARLOW
Plaintiff

AND

TRINITY MINING SERVICES AND SUPPLIES PTY LTD (IN ADMINISTRATION)
Defendant

Catchwords:

Corporations - External administration - Application for leave to commence proceedings against company subject to a deed of company arrangement -Whether an insurer will respond to proceedings commenced against company - Whether leave should be granted - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 444E

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Ms S Reeves
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Separovic Injury Lawyers
Defendant	:	No appearance

Case(s) referred to in decision(s):

Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (subject to deed of company arrangement) [2016] FCA 1246
Barlow v WA Concreting Pty Ltd (In Liquidation) [2025] WASC 156
Mehan v Arrium Ltd (formerly Onesteel Ltd) [2016] NSWSC 1680

HILL J:

By amended originating process dated 30 April 2025, the plaintiff seeks leave pursuant to s 444E of the Corporations Act 2001 (Cth) (Act) to commence civil proceedings against the defendant in the District Court of Western Australia.
If leave is granted, the plaintiff ultimately intends to consolidate these proceedings with existing civil proceedings that were commenced in the District Court of Western Australia against WA Concreting Proprietary Limited (in liquidation) (WA Concreting) and Wylie & Co Proprietary Limited (Wiley & Co), being CIV 929 of 2025, as the claims arise out of the same incident.[1]
[1] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [6] - [7], 'SR-1'.
The application is supported by two affidavits of Stephanie Jane Reeves, a solicitor for the plaintiff, filed 29 and 30 April 2025, as well as two exhibits that were tendered at the hearing this morning.

Factual background

Much of the factual background to the application was canvassed in my previous decision on 15 April 2025 where I granted the plaintiff leave to commence the existing proceedings against WA Contracting pursuant to s 471B of the Act.[2] I do not intend to repeat that summary and adopt in these reasons the definitions that I used in those reasons. What has occurred since that hearing can be summarised as follows.
[2] Barlow v WA Concreting Pty Ltd (In Liquidation)[2025] WASC 156.
On 24 April 2024, WorkCover WA registered a common law election pursuant to s 421(1) of the Workers Compensation and Injury Management Act 2023 (WA). The plaintiff has been assessed as having a whole person impairment of 22%.[3]
[3] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [15].
On 28 April 2025, the plaintiff commenced the Existing Proceedings in the District Court.[4]
[4] Affidavit of Stephanie Jane Reeves filed 30 April 2025, 'SR-1'.
Prior to the commencement of those proceedings, on 24 April 2025, the plaintiff's solicitors were informed by a solicitor for Wiley & Co that the defendant, Trinity Mining Services and Supplies Pty Ltd (in Administration) (Company), was a contractor on the Site where the plaintiff sustained injuries to his lumbar spine on 2 May 2022.[5]
[5] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [16].
Mr Barlow has since instructed his solicitors that there was another contractor on site which included the name 'Trinity', whose employees, servants, and/or agents had supervision and control over the plaintiff's day‑to‑day duties at the Site, including over the activity that caused the accident on 2 May 2022.[6]
[6] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [5.4].
As a consequence of these instructions, the plaintiff's solicitors undertook a company search of the Company, which indicated that Stephen Robert Dixon had been appointed as deed administrator of the Company by way of deed of company arrangement on 28 February 2024.[7]
[7] Affidavit of Stephanie Jane Reeves filed 30 April 2025, 'SR-11'.
Any action against the Company for damages in relation to the personal injuries suffered by the plaintiff on 2 May 2022 must be commenced on or before tomorrow, 2 May 2025.[8]
[8] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [26].
Notice of the plaintiff's intention to make this application has been given to both the deed administrator and the sole director of the Company.[9] The plaintiff's solicitors have requested details of whether the Company had insurance at the time of the accident, the type of insurance, and the policy limit.[10] In response, the Company's director has informed the plaintiff's solicitors that he did not intend to notify the Company's workers compensation insurance provider of the application, and has otherwise not provided the information sought.[11]
[9] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [18] ‑ [19], 'SR-12', 'SR-13'.
[10] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [21], 'SR-16'.
[11] Affidavit of Stephanie Jane Reeves filed 30 April 2025 [22], 'SR-17'.
A further request has been made to both the deed administrator and the director as to the identity of the insurer and the policy limit and, at this stage, no response has been received.

Should leave be granted?

In considering the orders to make on this application, I have considered the terms of the deed of company arrangement (DOCA).[12] Pursuant to cl 11.1 of the DOCA, while the DOCA remains in force, no creditor can begin or continue with proceedings without leave of the court. The terms of the Deed make it clear that it governs all claims against the Company that arose prior to 15 February 2024.
[12] Exhibit B.
On this basis, I accept that the plaintiff is a person bound by the DOCA and that s 444E of the Act applies. Pursuant to this section, a person cannot bring or proceed with the proceeding against a company bound by a DOCA except with the leave of the court.
The principles relevant to determining an application for leave to proceed under s 444E are well established.
In Mehan v Arrium Ltd (formerly Onesteel Ltd), Black J confirmed that the legal principles relevant to a s 444E application are 'analogous to those which would be applied by a court in considering an application for leave to proceed against a company in winding up under s 471B of the Corporations Act, rather than the more stringent test that may apply in determining applications for leave to proceed against a company under administration under s 440D of the Corporations Act'.[13]
[13] Mehan v Arrium Ltd (formerly Onesteel Ltd) [2016] NSWSC 1680 [11] (Mehan).
His Honour identified the following factors as relevant to a court's discretionary decision to grant leave under s 444E:[14]
(a)whether the plaintiff's claim has a solid foundation and gives rise to a serious dispute;
(b)whether the proceedings have progressed to an advanced stage;
(c)whether the plaintiff was involved in the administrators' appointment;
(d)whether the plaintiff would suffer disadvantage if leave is refused;
(e)whether the defendant is insured against the alleged liability that is the subject of the proceedings;
(f)whether, if leave is granted, the deed administrators will be unreasonably distracted from performance of their statutory duties or obliged unnecessarily to incur substantial legal costs; and
(g)whether, in the circumstances, there are good reasons for allowing the plaintiff to continue the proceedings even if the deed administrators do not provide consent.
[14] Mehan [12].
His Honour also referred to Perry J's summary of applicable legal principles in Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (subject to deed of company arrangement), namely that:[15]
(a)the applicable principles were those applied in determining applications for leave under s 471B of the Act in relation to liquidation;
(b)the onus lies upon the applicant to establish that the ordinary procedure established by a deed of company arrangement should be displaced, namely, that the continued pursuit of the litigation should be substituted for the procedure by which a claimant lodges a verified proof of debt with the deed administrators who admit or reject it, wholly or in part and from whom an appeal lies to the court;
(c)the question whether leave should be granted turns upon the exercise of discretion, and each application must turn upon its particular facts and the question cannot be approached as a 'shopping list' of factors; and
(d)the exercise of discretion is informed by previous decisions as to relevant factors to be considered and by the purpose of the ordinary rule in s 444E(3) of the Act prohibiting a creditor from pursuing litigation, including the risk that a company in deed administration would be subject to a multiplicity of actions.
[15] Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (subject to deed of company arrangement) [2016] FCA 1246 [83] ‑ [89], cited in Mehan [14].
In determining this application, I have weighed in the balance: the nature of the plaintiff's claim; its seriousness; the fact that the proceedings have not yet been commenced; and the status of the defendant as a company that is subject to a DOCA. I also take into account the fact that the plaintiff was not involved in the appointment of the deed administrator, and that the Company's deed administrator neither consents nor opposes the application.
Having regard to the affidavit material before me, I am satisfied that the plaintiff has demonstrated that his claim has a solid foundation that gives rise to a serious dispute. There is a sufficient basis on the evidence before me to support a contention that the defendant was a principal contractor on the construction site, was an occupier of the site, and a person in control of the site where the accident occurred. The plaintiff's claim is a significant damages claim for personal injuries, and there is evidence before the court that the injury is above the threshold in Western Australia for the commencement of common law proceedings.
I am also satisfied that the plaintiff would suffer disadvantage if leave is not granted, as he would be unable to pursue claims against all those parties who are potentially responsible for the accident. If leave were refused and the plaintiff is unable to pursue a claim against the defendant, it is possible that any damages he might otherwise be entitled to could be reduced if the court were ultimately to accept that the defendant's officers, employees or agents were contributorily negligent to the incident.
While the plaintiff's solicitors have not yet been able to confirm whether there is an insurer that responds to the claim, I accept that it is likely, given the nature of the claim that is made by the plaintiff, that there will be an insurer who will respond to the claim . In any event, I accept that the order proposed by the plaintiff for the matter to return to court to consider whether leave should be revoked, is sufficient to address the possibility that there is no insurance coverage for this claim.
I am also satisfied that the deed administrators will not be unreasonably distracted from performance of their statutory duties or obliged unnecessarily to incur substantial legal costs if leave is granted under s 444E. This is because, on the deed administrator's own correspondence, which is confirmed by the terms of the DOCA, the control of the Company has now returned to the director.
Finally, the plaintiff proposes a form of order which provides a safety net for the Company and its creditors more broadly. Order 2 of the plaintiff's originating process contemplates that the plaintiff will not be permitted to enforce any judgment that ultimately might be secured against the defendant without leave of the court. It is envisaged that on enforcement the court may revisit the matter of insurance and whether the insurer will meet any judgment sum.
In all of the circumstances, I am satisfied that it is appropriate to make the orders sought by the plaintiff in the minute of proposed orders filed 30 April 2025, together with the additional order (order 2) sought in the amended originating process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Hon Justice Hill
21 MAY 2025